Doe v. Scott

Brent, J., delivered the opinion of the Court. This action of ejectment was instituted by the appellants, in June, 1859, and the tenants in possession failing to appear, judgment by default was rendered against the casual ejector on the 4th of Eebruary, 1860. Upon the judgment a writ of possession issued in the usual form, and under it the appellants were put in possession on the 18th of May, 1860. On the 30th of November, 1869, more than nine years from the date of the judgment, the appellees filed a petition praying that the judgment may be stricken out, and that the Court will allow them to come in and defend.

They assign as reasons, — their claim of title, that the property in question is still unimproved, and that they had no knowledge of any of the proceedings in the suit until the day before the filing of their petition. The answer of the appellants denies that the appellees have any title in the property, and claims that the title is in themselves, having purchased the property under a decree of the Superior Court in Equity, and obtained a deed therefor, in September, 1855, from William A. Stewart, trustee. It also denies that the appellees did not know of the judgment until the time alleged in their petition. Upon ⁶⁰ proofs filed by both parties the motion to strike out was heard on the 19th of February, 1870, and the Court on the same day pased an order striking out the judgment by default, and quashing, the writ of possession. - It is not alleged, nor does it appear, that there was any. irregularity in obtaining this judgment, or in issuing the writ of possession and the proceedings under it.

There is no proof of any fraud or deceit on the part of the appellants, or of any surprise upon the appellees practised by them or through their agency. The application rests solely upon a claim of title and a want of knowledge that such a judgment existed. In the cases of Munnickhuyson vs. Dorsett, 2 H. & G., 378 , and Klinefelter’s Lessee vs. Carey, 3 G. & J., 349 , the Court refused to sanction the striking out of the judgments by default, upon the grounds that there had been too long a lapse of time. In the one case the judgment was of eight years standing, and in the other nine.

In the latter case the Court, after reviewing a number of decisions, uses this language : “ By all these cases the principle seems to be affirmed that it is only where the judgment is a recent one, that the Court will interfere for the purpose of setting it aside, to enable the tenant to appear and defend his possession. But no case, it is believed, can be found where a judgment has been stricken out after such a lapse of time, and under the circumstances existing in the present case.” These cases, and the. authorities to which they refer, do not go so far as to hold that lapse of time, under all circumstances, is a sufficient ground for refusing to strike out a judgment of this description, blit they establish the doctrine that when. it occurs, a strong case upon the merits must' be presented in support of such a motion. The party making it must not only allege a sufficient reason, but the allegation must be